WAGER v. RAO

10462. 21072/12.

178 A.D.3d 434 (2019)

113 N.Y.S.3d 63

2019 NY Slip Op 08628

Nina Wager, as Executrix of the Estate of Sally Cordaro, Deceased, et al., Respondents, v. Narasinga Rao, M.D., Defendant, and Michael Swirsky, M.D., et al., Appellants.

Appellate Division of the Supreme Court of New York, First Department.

Decided December 3, 2019.


Attorney(s) appearing for the Case

Voute, Lohrfink, Magro & McAndrew, LLP, White Plains ( John R. Braunstein of counsel), for Michael Swirsky, M.D., appellant.

Garbarini & Scher, P.C., New York ( William D. Buckley of counsel), for St. Barnabas Hospital, appellant.

The Jacob Fuchsberg Law Firm, New York ( Aaron S. Halpern of counsel), for respondents.

Concur—Friedman, J.P., Oing, Singh, Moulton, JJ.


Plaintiffs claim that defendants departed from the standard of care by failing to timely diagnose the decedent's lung cancer and that, as a result, the cancer progressed to a more advanced and less treatable stage and the decedent died.

The motion court improvidently exercised its discretion in denying defendants' summary judgment motions as "incomplete." Nonetheless, the motions must be denied on the merits.

Defendants' expert opined that proximate cause...

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